Democratic Convention Watchhttp://www.democraticconventionwatch.com
Wed, 21 Feb 2018 12:20:21 +0000en-UShourly1https://wordpress.org/?v=4.9.3Pennsylvania Redistrictinghttp://www.democraticconventionwatch.com/diary/6561/
http://www.democraticconventionwatch.com/diary/6561/#respondWed, 21 Feb 2018 12:20:21 +0000http://www.democraticconventionwatch.com/?p=6561Monday, the Pennsylvania Supreme Court issued an order (with attached maps) redrawing the Congressional Districts for Pennsylvania This order follows on last month’s decision finding that the 2011 map violate the Pennsylvania Constitution as a partisan gerrymander. The United States Supreme Court is currently considering two cases — one argued last fall and one scheduled to be argued next month — on whether the U.S. Constitution also bars partisan gerrymanders.

I will leave it to our local experts to follow up on exactly how the new lines should impact November’s election. The key points to make for now are: 1) this map will govern this year’s elections as filing with the Supreme Court’s including a time table for implementation of the order and candidate filing that will allow the primary to take place as scheduled; 2) the old maps were gerrymandered in such a way that the Republicans have carried 13 of the 18 districts (and the same 13) in each of the three elections so far under the old map (even though the Democrats won state-wide by 5% in 2012 and 9% in 2014 and barely lost in 2016); and 3) in the three elections under the old map, 37 of the 39 Republican wins were by double digits (the other two involved margins of 9% and 4%). The early numbers that I have seen from national prognosticators is that Democrats should pick up at least two seats in a 50-50 cycle and, in a cycle in which Democrats get 55% or more nationally, the Democrats would pick up an additional 2 to 3 seats (a 9-9 split or 10-8 in favor of the Democrats). That compares to 2012 in which the Democrats got 53% nationally but still only won 5 seats in Pennsylvania.

One thing that is significantly different about the new map is that there are less weird shapes, and most of the weirder shapes in the new map comes from not splitting counties or municipalities unless such splits are absolutely necessary to maintain equality. There is also some changes in the numbering. As a result, some incumbents (including whomever wins the upcoming special election in Western Pennsylvania) will have to decide what district they will run in this year. Some incumbent may be looking at a situation in which either: 1) their base is split between multiple districts; 2) they live in one district while the heart of their old district is in another district; 3) their new district contains a substantial portion of the old district of another incumbent. As such, sitting members may have to decide between retiring, challenging another incumbent from their party, or running in a district in which they will have a difficult time running. We may not know until filing closes on March 20 (one week after the special election) how the incumbents will reshuffle from the old seats to the new seats and whether we will have any incumbent vs. incumbent primaries or general elections.

]]>http://www.democraticconventionwatch.com/diary/6561/feed/0Supreme Court Timewarp: Revenge of the Computer Nerdshttp://www.democraticconventionwatch.com/diary/6559/
http://www.democraticconventionwatch.com/diary/6559/#respondTue, 20 Feb 2018 15:34:02 +0000http://www.democraticconventionwatch.com/?p=6559Imagine that you are back in the mid-1980s. Most people’s knowledge of computers comes from the movie Wargames. Some larger business and universities had computer networks with employees having work stations, but home computing was just beginning. Apple had just introduced the McIntosh, but, if you used a Microsoft operating system, you were using MS-DOS. Additionally, your home computer used a dial-up modem if you wanted to communicate with other computers. To communicate with another computer, you needed to know the phone number for that computer’s modem. (If you were just searching to see what was out there, there were techniques and programs known to hackers to find other computers and save those numbers for later use.) A pre-internet existed through “bulletin board systems” which allowed the posting of messages and downloading and uploading information through that system.

While most of the provisions of the Stored Communications Act protects the rights of those who use electronic communications, some of the sections (including Section 2703) establish the procedure by which the government can obtain stored communications when needed for a criminal investigation. The procedures recognize that these communications might be stored in another state and require companies to honor warrants issued in the state in which prosecutors need access to those communications.

On February 27, the Supreme Court will hear arguments in United States v. Microsoft. There is no question in Microsoft about the validity of the warrant obtained by the United States. Instead, the dispute between the parties concern what communications are covered by the Stored Communications Act. The dispute reflects how much the world has changes since 1986 while the statute has not.

As noted above, in 1986, most of these communications were sent to and through bulletin board systems. Almost all of these bulletin board systems were based in the United States and stored their information on servers in the United States. Today, most of the major internet service provides and e-mail services are multi-nationals with servers located in many countries. In “choosing” where a particular communication is stored, the present location of any data is based on the need of the service providers. Some companies even split one communication among multiple servers. While, for the most part, a communication is stored at a location close to the sender or recipient, that is not always the case.

In Microsoft, the communication at issue is apparently stored on a server in Ireland. The company takes the position that ,because the communication is stored in Ireland, the federal government needs to work with the Republic of Ireland under Irish and European Union law to obtain the information. The federal government, while generally agreeing that U.S. law does not extend to activities in other countries, disputes that this particular communication is not “within the United States” for the purposes of American law. The federal government’s basic position is that there are three ways that a communication can be within the U.S. for a Stored Communications Act warrant: 1) if it originated within the U.S.; 2) if the recipient was within the U.S.; and 3) if the company storing the communication could access its servers from within the U.S. Aside from its legal arguments within this case, Microsoft (and other service providers who have filed briefs supporting Microsoft) is concerned about being caught between the U.S. government’s demand for the data and the “host” country’s laws protecting customers which could lead to inconsistent legal obligations. The host country’s laws do not necessarily give “better” protections to privacy than U.S. law but simply require different steps. And the need to coordinate internationally means that the host country will always have an easier time accessing the data than prosecutors from other countries.

From a law enforcement perspective, while a particular prosecutor’s office might only make a Stored Communications Act request once or twice a month (in a larger jurisdiction), the cases involving such requests tend to be among the most serious cases. (For example, it is likely that such a request has been made in the recent Florida shootings to find any posts or e-mails that the shooter may have sent concerning his plans or explaining his motivation.) Any delay created by the need to send a request through a foreign country (even a friendly country that wants to cooperate) could hinder an on-going investigation and lead to a suspect staying at-large to commit new offenses while law enforcement waits for the request to go through diplomatic channels.

Needless to say, the Stored Communications Act is silent about the possibility that “American” data could be stored in another country by the service provider. In the face of this silence, the Supreme Court will have to decide what data qualifies as “American” data that is subject to the reach of federal law. The simple solution to this issue would be for Congress to amend the Stored Communications Act to expressly define what the reach of the warrant provision is. While there are proposals that would address this issue pending in Congress, the odds of a legislative solution to this issue are slim and none. And, of course, Microsoft (and other service providers) and law enforcement agencies need to know what the rules are now under existing law until such time as Congress provides an answer.

Which brings us back to the beginning — a Supreme Court having to decide how the principles and rules established to operate and regulate electronic communications as they existed in the 1980s applies to the very different world of 2018. There is no absolute right answer and any attempt to fathom the “intent” of President Reagan and the Congress that passed it is a fool’s errand or an attempt to legitimize one’s own policy preferences. One can complain about judicial activism in general, but there is no way for the Supreme Court (or any lower court which has to decide whether a service provider has to comply with a Stored Communications warrant) to decide this issue without engaging in judicial activism — whether that activism favors the government or the service provider. The courts have no option other than to make a policy choice (admittedly one that does implicate some traditional legal principles, but principles that are somewhat in conflict in this circumstance) because the legislature has proven unable to make that policy choice.

The City of Charlotte, working together with key partners and stakeholders, is evaluating options to host the 2020 Republican National Convention.

This is the first step in submitting a proposal highlighting all that Charlotte has to offer as a convention destination.

…

The City of Charlotte hosted the Democratic National Convention in 2012, an event deemed a big success by the DNC. The convention drew approximately 35,000 delegates, media and visitors, becoming the single largest event in the city’s history. The event had an economic impact of more than $163 million.

Bids are due Feb 28th.

]]>http://www.democraticconventionwatch.com/diary/6555/feed/02020 Democratic Convention — Unity and Reform Commission — Part 2http://www.democraticconventionwatch.com/diary/6552/
http://www.democraticconventionwatch.com/diary/6552/#respondMon, 12 Feb 2018 14:55:33 +0000http://www.democraticconventionwatch.com/?p=6552One of the issues in the last several primary cycles — for both parties — have been the role of unpledged delegates. There are several reasons why both parties designate certain party officials (and on the Democratic side, elected officials) as automatic delegates. First, it removes these individuals from the competition for the “regular” delegate slots making it easier for grassroots activists to compete for a delegate slot. Second, these individuals have a slightly different perspective than the voters. While everyone wants the party to win the White House, state party officials are also responsible for winning as many down ballot races as possible. Elected officials want to win their own races. As such, in theory, if the leading candidate seems too extreme or flawed, the unpledged delegates could swing the nomination to the second-placed candidate. Before 2016, the Republicans decided to bind their automatic delegates based on primary results in their state. After 2016, some Republicans might regret that their automatic delegates no longer had that power given the continuing fiasco that is Donald Trump. However, in neither party, the automatic delegates have ultimately supported the candidate that won the most delegates; so this theoretical power has never been used.

Even though this power has never been used to change the result, many Democrats have wanted to reduce the power of the automatic delegates. The resolution that created the Unity and Reform Commission mandated that, while elected officials (Senators, Representatives, Governors) and distinguished party leaders (e.g., former presidents, former DNC chairs, former speakers/caucus leaders) would remain unpledged, DNC members would be pledged in accordance with the primary results. The task for the Unity and Reform Commission was to make recommendations as to how to handle this process. First, the recommendations distinguish between DNC members who represent the states (state party chairs and the DNC members elected by the state parties) and other DNC members (at-large members and those who represent groups of elected officials). The “state” members will be bound based on the state results; and the “national” DNC members will be bound based on the national results.

On the issue of exactly how to bind these automatic delegates, the Commission did not reach a final recommendation but, instead, suggested two alternatives. The first would just pool the delegate votes with no individual votes on the first ballot. The second would create a mechanism for assigning the automatic delegates to specific candidates based on the delegates personal wishes with some random mechanism if the personal preferences do not line up with the required allocation. Unlike regular delegates, however, the automatic delegates would be absolutely bound to these allocations.

An issue that was not addressed in the recommendation but will need to be addressed by the rules and by-laws committee is what happens when candidates drop out and release their delegates. Particularly in the early states, the third or fourth placed candidates might do well enough to be entitled to an automatic delegate vote. For “regular” delegates, the delegate effectively becomes uncommitted when his/her candidate drops out. If you go with the pooled process, that would cause problems with those votes being locked into candidates no longer running (making a deadlock slightly more likely). On the other hand, if you pledge the automatic delegates, the automatic delegates will tend to volunteer to be pledged to the candidates who dropped out (retaining their independence).

One other recommendation may be problematic. The commission recommended that automatic delegates who have a role in the election process should have to maintain the appearance of neutrality. It’s unclear if this applies to anybody beyond the state chairs who have tended to stay neutral in the primary process. To the extent that it applies to others, DNC members tend to be experienced activists — exactly the type of people whom a presidential candidate would want to be helping the campaign get organized in a state. Excluding these people from getting on board early may hinder the candidate who actually wins the nomination. However, the recommendation is somewhat vague and we will need to see what the RBC does with it.

Aside from the Trump cautionary note, one other caution. Unlike the Republicans, the system that the Democratic party uses to allocate delegates makes it very difficult for a candidate to win a majority of the delegates. In the past two cycles, two candidates have fought it out until the end. If a third candidate stays in for a lengthy period and does not release delegates, the reduction in the number of unpledged delegates may result in no candidate getting to a majority on the first ballot.

The RBC will be spending the first half of the year re-writing the national rules to take into account these recommendations (and any other changes that the RBC members may want to change). It will be interesting to see the final result.

]]>http://www.democraticconventionwatch.com/diary/6552/feed/02020 Democratic Convention — Unity and Reform Commission — Part 1http://www.democraticconventionwatch.com/diary/6544/
Sun, 07 Jan 2018 22:05:13 +0000http://www.democraticconventionwatch.com/?p=6544While, in one sense, it is very early to talk about who will be President of the United States on January 21, 2021, there are many people who think that process has a lot to do with results. And the drafting of the rules for 2020 have already started.

On the Republican side, there is no public effort to re-write the rules. Unlike the Democratic Party, the Republican party has the basic rules (which are less detailed than the Democratic Party rules) for allocating delegates to the national convention within the actual Rules of the Republican Party and require a supermajority of the Republican National Committee to change those Rules.

The Democrats, however, keep the rules for delegate selection separate from the party by-laws. So every cycle, the rules and by-laws committee drafts those rules and submits them to the full Democratic National Committee for approval. The starting point for these rules is the rules from the previous cycle. However, because no rules are perfect, most contested campaigns lead to complaints about the rules. These complaints in turn have, in most of these cycles, caused the party to appoint a commission to study whatever rules were seen as being a problem in the last cycle and make recommendations.

In response to complaints about the 2016 cycle, the party appointed a “Unity Reform Commission.” This Commission has now issued its report. In the normal course of business, this report goes to the rules and by-laws committee to consider the recommendations contained in the report. However, the resolution creating the Commission allows the Commission to bring its recommendations directly to the full Democratic National Committee if it is not satisfied with the decisions of the rules and by-laws committee.

Before going into the key concepts in the recommendations, there is one key fact about the delegate selection plan that needs to be mentioned. The delegate selection plan represents the preferences of the national party. However, particularly in those states that use a primary, there are parts of the process that are governed by state law. Typically, the rules require the state parties to take “provable” steps to change the state law to bring it into compliance with the delegate selection rules. However, even when both parties want the state laws changed or Democrats control the legislature (i.e. both houses and the governor), those running the legislature may not put the same priority on changing state law that the state parties have. In other words, even if the final delegate selection plan includes all of the recommendations contained in the rules, the state parties may be unable to comply. Usually, the rules and by-laws committee has approved waiver requests by the state parties when they are unable to comply with the plan due to state law, but those waivers are not automatic.

In this first part, I want to focus on the participation aspects of the report and its recommendations. Over the last fifty years, the Democratic Party’s rules have generally pushed for two things on the participation front. On the one hand, the Democratic Party has required the state parties to take steps to allow all Democrats to participate in the delegate selection process. On the other hand, the Democratic Party has required the state parties to take steps to limit participation in the process to Democrats.

This second feature of the rules got some resistance this last cycle. The traditional rule reflects the belief of many in the party that a party should have a core set of beliefs and that the candidates chosen should reflect those core positions. In most countries with “strong” parties, this concept that a party should pick its own candidates is not controversial. In the U.S., however, candidates are seen as somewhat separate from the party. As the rules make it extraordinarily difficult for candidates to run as independents, many who do not strongly identify with a political party think that it is unfair that they are excluded from the process of narrowing down the field to the two main candidates.

The recommendations of the Commission to some degree address both of the participation issues. On the issue of making it easier for Democrats to participate in the process, the recommendations represent a continuation of the efforts of the past. On the issue of making it easier for non-Democrats to participate, the rules reflect something of a change.

The encouraging greater participation element of the recommendations are most relevant to the caucus states. Because each state does things differently, the recommendations will not impact all of the caucuses in the same manner. First, a caucus-based plan must include a provision for absentee voting. Second, the first round of voting at each location must be in writing, and the results (raw vote total) of that ballot must be reported to the state party. (In some caucus states, the local party currently only reports the delegates won in a given caucus.) Third, the allocation of national convention delegates will be based on the results of that first round of voting. (In some states, the current rules allocate delegates based on the results of later rounds of voting — either at the initial caucus or at later conventions.) Finally, the rules encourage state parties to use a government-run presidential primary when state law establishes such a primary (i.e. state parties in states like Washington and Nebraska will have to explain why they are opting for a caucus rather than using the results of the primary).

The recommendations also encourage making it easier for people to vote in the Democratic primary. The United States Supreme Court has upheld state laws setting registration deadlines and deadlines for changing party registration. In some states, the deadline for changing party registration predates the deadline for registration by new voters and the deadline for candidates to file (basically requiring voters to choose which party they belong to before knowing who is running or which offices will have competitive primaries). In many states, once a person has voted in one primary, they may not switch parties in the remainder of the cycle (significant if the state holds its presidential primary on a different date than the primaries for other offices).

Because these issues involve state laws, the recommendations only require the state parties to take steps — lobbying for changes and potentially filing legal challenges — to achieve those results (the recommendations would have the rules and by-laws committee insist on state parties filing legal challenges to demonstrate that they have taken adequate steps to change the laws). First, state parties should try to change state law to permit same-day registration. Second, even if there is a registration deadline, the state parties should try to change state law to permit same-day changes of party registration. Third, even if there is a deadline for changing party registration, the state parties should try to change state law so that the deadline for changing party registration is no earlier than the deadline for registering. Finally, state parties should take steps to make the public aware of these deadlines as they approach.

Looking at the potential impact of these changes if adopted, the changes to the caucus rules are most significant. While the report recognizes the usefulness of caucuses in building local parties, the turnout in most caucus states is significantly less than turnouts in party primaries. (In 2016 in Nebraska, the participation in the binding caucuses was approximately 33,000; the turnout in the non-binding primary was approximately 80,000.) The reality is that it is much harder for a voter to make (and stay for) a lengthy meeting at a specific time of the day as opposed to being able to vote at whichever time during the day is most convenient. Rules making it simple for voters to cast an absentee ballot should significantly increase participation.

Additionally, by connecting the ultimate delegate allocation to the first round of voting, the rules changes will alter the delegate allocation in states like Iowa. Currently, in states like Iowa, there are two big distortions in the results. First, actual turnout in a particular precinct is relatively insignificant. If a precinct has thirty delegates to the county convention, it does not matter if sixty voters show up or six hundred voters are present. The results are reported as candidate X won 15 delegates, candidate Y won 10 delegates, and candidate Z won 5 delegates. Second, those delegates are allocated based on the second round of voting. So in a seven candidate race (likely to occur in early states like Iowa and Nevada), voters who supported the trailing candidate in a given precinct have to switch to a different candidate. Because a candidate who gets ten percent of the vote in a precinct gets no delegates and her supporters have to switch to one of the other candidates, the reported results overstate the support for the top candidates and understates the support for the other candidates. Looking at the results in Iowa in 2008, the top three candidates got around 30% of the county convention delegates with the next candidate getting around 3% of the county convention delegates. It is likely, however, that a candidate who got enough second round votes in some precincts to win county convention delegates probably had a large number of first round votes in precincts in which he fell short of 15%, The second tier candidates may still fall short of the 15% state-wide or in the individual congressional district to win delegates, but a candidate who gets 12% while the winner is only getting 22% is more likely to last to Super Tuesday than a candidate who got 2% while the winner is getting 30%.

Because the rules on registration require state action, I am dubious on much progress taking place. I think the caucus states can probably choose to allow same day registration/change of party affiliation at mass meetings. A state party could probably win a case seeking an open (everybody) or a semi-closed (party members and independents) or a closed (party members only) primary as the cases uphold the rights of parties to define who can participate in their processes. On the other hand, state parties would probably lose a case on the registration process in light of cases finding that states have the right to protect election integrity.

Even if state parties can obtain changes to the registration rules, it is less easy to predict the impact of such a change. It is pretty clear that the current caucus system brings in a more activist group of voters — tending more liberal on the Democratic side and more conservative on the Republican side — than a primary election would. So the changes to the caucus system should benefit the better known establishment candidates. Additionally, for the reasons noted above, some candidates may last longer under these rules and win more national convention delegates than they would have under the current rules. The changes to the registration system, however, will be very election specific (as the example of New Hampshire, a state that does allow party switching demonstrates). In some elections, moderate independents will opt to take a Republican ballot while in other cycles moderate independents will opt to take a Democratic ballot — depending on a variety of factors.

Participation is generally a good thing. But as we saw this past year with the various special election, the level of turnout has an impact on the results. And in the nomination process, there is always the question of whether voters loosely affiliated with the party share the ideals of the party. As the Republicans saw in 2016, it is possible for outside candidates to use the primary process to engage in a hostile takeover. In the Democratic Party, one check on such a hostile takeover has been the role of the unpledged delegate a/k/a superdelegates. The suggested changes to those rules will be the focus of the next part.

]]>A Long Decemberhttp://www.democraticconventionwatch.com/diary/6539/
Sun, 17 Dec 2017 20:54:27 +0000http://www.democraticconventionwatch.com/?p=6539The year comes to a close with its usual mix of good news and bad news.

On the 2020 presidential election, the Unity Reform Commission has completed its work. Josh Putnam over at Frontloading Headquarters has posting summaries of the Commission’s decisions. From the first two summaries, the recommendations seem to be moving toward more open primaries (a reversal of the party’s traditional support for closed primaries) and to make caucuses more like primaries with a preference toward using the primary if there is a state-run primary. These recommendations will go to the Rules & By-laws Committee (which folks may remember from 2008). The Rules & By-laws Committee will take these recommendations into account in drafting the 2020 Call and Delegate Selection Plan. When the draft is concluded, the RBC’s draft goes to the full Democratic National Committee for approval. If the Unity Reform Commission believes that the RBC is not fully implementing their recommendations in the draft, they can ask for the full DNC to intervene. Presumably, the party will also begin its site selection process early in 2018.

As the site selection and the rule drafting process continues, there will probably be a lot of discussion here. For now, it is important to be cautious about changes driven by the problems of the last cycle. There is always a temptation to “fight the last war.” But the problems in one cycle do not necessarily recur in the next cycle, and it is important not to do things that will probably make more problems than they fix.

The good news of December is, of course, the results in Alabama. Regaining control of the Senate will still be an uphill battle in 2018 due to the large number of marginal seats that Democrats won in 2012. But, after Alabama, we only need to gain two seats (rather than three) to gain the majority. It looks like there will be at least three (and maybe more) potential gains in 2018. If we can keep all of our current seats, there is a fighting chance at gaining a majority. The swings reflected in Alabama, the various House races, and the various state legislative races in 2017 would be enough to regain the House if those numbers can be repeated across the board.

The need for such large swings brings us back to the issue of gerrymandering. Last week, the United States Supreme Court put a second partisan gerrymandering case (from Maryland) on its schedule for this term. While the Supreme Court has to do something in election appeals, it does not have to hear arguments in every one of those appeals. In fact, it has another partisan gerrymandering case in which the appeal was filed before the Maryland case that it is holding. The Maryland case has some differences from the Wisconsin case that was argued in October, most significant of which is that, in Maryland, the Democrats controlled the redistricting process. Because one of the issues in all of the pending appeals is whether the Supreme Court should even get involved in partisan gerrymandering, the decision to take a second case suggests that the majority is inclined to find that this type of claim can be brought in federal court. Taking the second case implies that the Supreme Court is looking at the rules that would govern this type of claim and wants another case to see how those rules would work in action. Additionally, issuing published opinions setting aside both a Republican plan and a Democratic plan would give the appearance of being non-partisan. If the Supreme Court issues one opinion for both cases, it is unlikely that it will issue before June. As such, the 2018 elections will probably be under the current plans. While it is possible that the decisions will lead to new lines for 2020 elections, the real impact of the decisions will be in 2021 when redistricting begins again.

Then, there is the tax bill. Even Republican voters appear to have doubts about the tax bill and with good reason. It would be nice to have Donald Trump’s tax returns to see how much he will benefit from this bill, but it seems to be written to benefit the wealthy and certain types of businesses (including real estate development). For middle class voters, it takes a tax accountant to determine if the immediate impact of the bill would help or hurt a particular family. One of the many changes in the tax bill, however, is to change from using the “regular” Consumer Price Index to using the Chained Consumer Price Index. The Chained-CPI tends to show a lower rate of inflation than the regular CPI. In the long run, that means that the standard deduction will not keep pace with inflation. Additionally, tax brackets will not be adjusted as much as they should be. Assuming that salaries do keep pace with inflation, a larger percent of income will be subject to taxation and at higher levels.

Putting aside the tax part of the tax bill, there is also the individual mandate part of the tax bill. Nominally, the tax bill does not repeal the individual mandate, but it does set the penalties at zero. When added to the shortened enrollment period, this change poses a lethal threat to the insurance industry. I would not be surprised if some companies file bankruptcy to get out of their current 2018 rates. At the very least, prepare for an astronomically large rate hike next fall. The health insurance industry was not in a death spiral when President Trump took office, but it could very well be by the time that the next president takes office in 2021.

Lastly, there is the decision to put the U.S. Embassy to Israel in Jerusalem. Normally, we do place an embassy in a country’s capital. Israel, however, is the only country that has opted to place its capital in disputed territory. The U.S. has, in the past, tried to finesse its position on Jerusalem in order to be the logical mediator between Israel and its neighbors (including the Palestinians living on the West Bank). If this move was part of a negotiating strategy (i.e. getting Israel to make certain concessions in exchange for the move), it might be justifiable. But there is no apparent benefit to the U.S. from making this move (and there will be the expense of building a new embassy), and it will clearly have a negative impact on our relationship with other nations in the Middle East. (How much remains to be seen.) At the very least, we are no longer neutral on Jerusalem, eliminating our position as the most obvious mediator.

In short, the end of 2017 reflects a Trump Administration dedicated to making things worse for most of America at home and weakening the U.S. abroad. The 2018 elections and possible revisions to the rules for drawing congressional and legislative districts, however, are a light at the end of the tunnel.

]]>To Bake or Not to Bakehttp://www.democraticconventionwatch.com/diary/6530/
Sat, 02 Dec 2017 15:52:12 +0000http://www.democraticconventionwatch.com/?p=6530This week, the United States Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission. The case involves Colorado’s civil rights statutes which prohibit discrimination based on sexual orientation. The petitioner — a baker — claims that he should be exempt from that requirement because he believes that gay marriage is morally wrong and, by making him sell a wedding cake to the happy couple, the Colorado law is compelling him to endorse the wedding.

In many ways, this case is similar to the Hobby Lobby case from several years ago, but, in some key ways, it is different. The main difference requires going back thirty years to a rather infamous free exercise decision, Employment Division of Oregon vs. Smith. In Smith, Justice Scalia all but wrote the Free Exercise Clause out of the Constitution — holding that it created no exemption based on religious belief from a generally applicable law. In response, Congress passed the Religious Freedom Restoration Act which was intended to restore the pre-Smith interpretation of the Free Exercise Clause. There are, however, two problems with the Religious Freedom Restoration Act. First, as shown by Hobby Lobby, it actually created more protections than the pre-Smith decisions. Second, the United States Supreme Court has held that it only creates a rule for interpreting federal statutes and that Congress does not have the power to impose a similar rule on the states. Because this case involves a state law, the RFRA does not apply. While the baker attempts to raise a free exercise claim, that claim is unlikely to succeed under Smith as the ban on discriminating against homosexuals is a law of general application. That does, however, leave the free speech claim.

The free speech claim brings us back into the Hobby Lobby universe where the question is whose perception controls. Besides actual speech, free speech protection extends to expressive conduct. Furthermore, as a general matter, the government may not compel speech. The question is thus who is speaking in this case — a question that could blow a significant whole in civil rights law.

The Civil Rights Commission and supporting groups take the position that the only speech at issue here is the customer’s speech. It is the customer that is having a wedding reception and celebrating their marriage. The baker is just providing a product. Since the provision of that product is compelled by law, no reasonable person could interpret the baker’s actions as an endorsement of the wedding.

The baker on the other hand — and supporting conservative groups — contends that he makes “custom” cakes. As such, in creating a cake, he is expressing a message of support for the customer’s activities. Since he does not support these customers, forcing him to bake a cake is compelling him to speak against his wishes. The baker suggests that the civil rights law puts him in the position of choosing between supporting activities that he does not wish to support or giving up his business to avoid what he believes to be a sin.

Needless to say, these two views of the baker’s role — or any other service provider’s role — in the wedding reception are diametrically opposed. If this issue had arisen in the 1960s or 1970s in the case of interracial marriages, it is pretty clear how the Supreme Court would have ruled. The only thing that differs today is that it is two men or two women seeking to marry rather than an African-American and a Caucasian.

Part of the issue here is the nature of baking (or any other similar activity connected with an event). I do not know who “custom,” the custom cakes are here. From my own knowledge of friends and families, a wedding cake is not really a custom product. There are two or three traditional designs and a handful of flavors for the cake, the filling, and the icing. In other words, a wedding cake is custom in the same way that a car is custom. The purchaser of a car gets to choose the color of the car and a couple of the features, but it is within the basic models that the dealership offers. What the customer is purchasing is not the creativity of the baker but his skills — his ability to execute what the customer orders. While artisans like to emphasize the artistic nature of their professions, they are not being hired to craft a message. They are being hired to execute the customer’s message.

If the only message is the customer’s message, this case would then fall into the traditional view of civil rights law. A car rental agency does not endorse the customer’s life choices in renting a car — even if the car is being rented for a special event (like a limo for a prom or wedding). Instead, the law eliminates any message that the product/service provider may wish to send with their business. The business is simply complying with the law by providing the good or service. If the provision of a good or service was compelled speech, then every business that did not want to provide goods or service to any group could claim a free speech exemption. For example, an apartment complex could claim that renting an apartment to a person a woman getting divorced reflects an endorsement of her choice to get a divorce and is contrary to their belief that women should not be able to divorce their husbands. That is simply not the way that civil rights laws have worked in the past.

As noted above, this brings us back to Hobby Lobby. In Hobby Lobby, there were two possible ways to characterize the case — either as the corporation being compelled to provide a particular type of coverage (birth control) in their health care policies making the employer responsible for what the employees did or the corporation simply providing a benefit (health care) with the employee choosing how to use that benefit. In Hobby Lobby, the Supreme Court accepted the corporation’s characterization of what they were providing, creating a religious liberty issue. We will see — probably in May or June — whether the Supreme Court takes the baker’s or the customer’s view of what the baker is doing by baking and selling a wedding cake.

]]>Tax Cuts vs. Tax Reformhttp://www.democraticconventionwatch.com/diary/6520/
Mon, 30 Oct 2017 22:36:30 +0000http://www.democraticconventionwatch.com/?p=6520The Republicans have set themselves the goal of passing tax legislation by the end of the year. They took a major step by passing a budget resolution this past week which authorized tax legislation as long as that legislation had a net cost of less than 1.5 TRILLION over the next decade. As such, as long as the CBO scores any legislation as complying with that cap, it is exempt from a filibuster.

That cap reflects a significant part of the current debate inside the Republican party — do they want a tax cut (reducing the overall tax burden) or tax reform (a revenue-neutral rewrite of the tax law). This debate will be significant because the Republican approach is that those who make the most money pay the most taxes and therefore should get the most relief. Thus, their proposals will be very top heavy on who gets the relief and the deductions most at risk will be those that benefit the middle class.

First, some Taxes 101 to set the background. Both at the corporate level and at the personal level, calculating taxes begins with defining income. Then there are certain authorized deductions from income that lead to a smaller income that qualifies as “taxable income.” There are then income brackets in which you pay x% for the first $Y amount of income, than pay a slightly higher rate on the additional income above that amount (and just that additional income). (E.g., If the top tax bracket is 40% and kicks it at $500,000, the taxpayer is only paying 40% on the income above $500,000 — so on an income of $700,000 that 40% only applies to the last $200,000 of income and the first $500,000 is taxed at a lower rate. ) After taxes are computed, the taxes can be reduced by tax credits.

For personal income tax, there are three basic types of “deductions”: 1) exemptions (a per person deduction); 2) the “standardized deduction” (a set default amount per person); and 3) “itemized deductions” (for those with enough deductions who would rather total up all of their deductions rather than using the standardized deduction). To compensate for abuse of tax loopholes by the wealthy, there is also something called the alternative minimum tax (an alternative calculation of taxes that effectively limits the available deductions).

On the tax reform/tax simplification side of the Republican debate, the goal is to reduce the number of brackets, reduce the tax rates, and eliminate deductions. (At its most extreme, you have the proponents of a flat tax — one rate, no deductions, no credits). The asserted goal of some in this part of the debate is to make taxes simple enough to do on a postcard. The key point is that, for those who want tax reform, cuts in the tax rates have to be offset by eliminating or reducing deductions and credits.

On the tax cut side, there is limited interest in simplifying the tax code. Deductions are on the table only to the extent that the proposed tax cuts exceed the cap in the budget resolution.

The ultimate problem is that, as briefly noted, the Republicans are not really interested in a middle class tax cut. It would be easy to draft a fair middle class tax cut — reduce the bottom two rates, increase the exemption. Everybody benefits, and the total benefit is roughly the same in dollar amounts for both the billionaire and the person who sweeps the factory floor. But that is not what is being discussed. While we have not yet seen any actual bill, some of the proposed ideas make clear that the goal is to raise taxes on the middle class to cut them on the wealthy.

One idea is to double the standardized deduction. By itself, that would not be a bad idea, but it is coupled with a proposal to eliminate the personal exemptions. Since the exemption is about two-thirds of the standardized deduction, double the standardized deduction for a married couple is roughly equal to the current standardized deduction plus the personal exemptions for a married couple with one child. If you have two children, you would actually be worse off under the new proposal. Additionally, doubling the standardized deduction means that fewer will benefit from itemizing, thereby making it easier to go after some of the individual deductions such as the deductions for interest and property taxes for homeowners or for state and local income taxes. (Even for some with one child or no children, their current itemized deduction plus the personal exemptions would exceed double the standardized deduction.) Finally, under current law, the exemptions begin to phase out at around $250,000 of income ($310,000 for married couples). So losing the exemption impacts middle class taxpayers but not the wealthy.

Another proposal that is floating around is to eliminate the tax deduction for contributions to some types of retirement plans. For now, the potential targets seem to be plans that make current contributions tax deductible (but tax withdrawals during retirement). On the other hand, Roth IRAs (in which you pay taxes now but all growth is tax-free) seem to be off the table. Since, for middle class taxpayers, the current deduction (and exemptions for employer contributions) is necessary to make saving for retirement affordable (and there may not be enough retirement income to make taxes during retirement an issue), the deduction for current contributions is important. On the other hand, a Roth IRA is beneficial to those who have a lot of potential retirement income and can afford to contribute to a retirement plan even if those contributions are not tax deductible.

On the other hand, while the final brackets have not yet been announced, it is pretty clear that the top rates will be reduced. In addition, there are proposals to eliminate the alternative minimum tax which assures that even the Trump family has to pay some taxes even if it is not their fair share. And, for those who make money from investments, there are proposals to treat capital gains even more favorably than they are under current law and to continue or expand the current favorable treatment of carried interest for the partners in investment firms. (Of course, if you really wanted to simplify taxes, all income would be treated the same — whether earned income or income from investment. While there are colorable arguments for some form of favorable treatment for investment income, by definition treating income from investments favorably does benefit those with the wealth to invest some of their money and requires those who do not have income to spare for investment to take a greater share of the tax burden.)

Additionally, while not part of income taxes, Republican seem to be wanting to take another run at repealing the estate (“greedy heir”) tax. Notwithstanding Republican rhetoric, the current law on estate taxes guarantees that, when most people die, their estates are not subject to estate taxes. Instead, it only applies to the wealthiest of families. While for some closely-held large corporations and sole proprietorships, it theoretically might be necessary to borrow money to pay estate taxes, there is little or no evidence that estate taxes have forced the sale of a business or some of the business assets. But the law does mean that — after having the benefit of wealthy parents paying for the best schools and either hiring them into the family business or otherwise helping them get started in business — that children and grandchildren have to give some of the family wealth back rather than simply accumulating wealth from generation to generation like some ancient aristocracy.

In short, any “reform” in the tax cut is likely to make middle class taxpayers actually pay more in taxes while having little impact on the tax burden of the wealthy. Meanwhile the “cut” part in any tax reform/tax cut is likely to substantially reduce the tax burden on the wealthy (and particularly on those like President Trump). Of course, we do not know how much any of these proposals will benefit President Trump because he still has not released his tax returns.

The good news, of course, is that taxes are complex. And the more that the Republicans want to cut the top rate, the more they will need to find offsets. And most of the deductions and credits in the tax code are there because somebody strongly benefits from them — charities like the charitable deduction, the child care industry likes the child care tax credit, state and local government like the deductibility of state and local taxes, the real estate and construction industry like the deductibility of interest payments on homes and other real estate, business like the deduction for capital investments, etc.

When a draft bill is actually introduced, it will generate opposition. At some point, if there is enough time, that opposition will place a brake on any attempt to get things done quickly. Of course, the Republicans have been drafting behind closed doors and deviating from normal procedure (the 1986 tax reform bill took about eighteen months from start to finish) is to make sure that the opposition to the bill does not have enough time to make the bill toxic. Simply put, the Republican majority needs some major legislation passed to show that they can govern. They would like to be able to tell their base that they passed a large tax cut (with the hope that the base will not realize until after the election that the tax cut actually increased their taxes). And they would like to deliver to their donors a bill that fulfills the wish list of the Republican donor class. If the process takes longer than five or six weeks, it will become clear that the draft bill is simply a Frankenstein monster that does not match the public statements of Republican leaders.

]]>Fall Electionshttp://www.democraticconventionwatch.com/diary/6518/
Mon, 23 Oct 2017 00:07:26 +0000http://www.democraticconventionwatch.com/?p=6518In most of the world, the practice is to limit the number of races being contested on any given election day. Thus, regional elections are held on a separate day from national elections. In the U.S., however, most states opt to hold state elections on the same day as national elections. Thus, in most states, the election for governor either falls on the same day as the mid-term election or on the same day as the presidential election. In a small number of states, however, the election for governor occurs in an odd-year.

Two states — Virginia and New Jersey — hold the election in the year after the presidential election. (Three states — Kentucky, Louisiana, and Mississippi — hold the elections in the year before the presidential election.) Both New Jersey and Virginia have a tendency — not absolute, but a tendency — to elect a governor from the party not in the White House. In New Jersey, the last time that the party in the White House won the governor’s race was 1985. In Virginia, while the party in the White House won in 2013, the last previous time that the party in the White House won was 1973. There are a lot of reasons for these results — including. similar to the problem that the party in the White House faces in mid-term elections, the simple fact that governing is much harder than running for office, so supporters of the party in power tend to be disappointed with the actual fruits of their victory while those out of power tend to be angry and motivated.

As things currently stand, things are looking very good for the Democratic candidates in New Jersey. Aside from New Jersey’s normal Democratic lean and the tendency for the party not in the White House to win, the Republicans nominated the current Lieutenant Governor, making it hard to separate the current Republican ticket from the corruption of the current administration of term-limited governor Chris Christie. The Democratic candidate, Ambassador Phil Murphy, leads by double digits in every poll this fall. While some of the polls show enough undecided voters to leave a theoretical opening for the Republican candidate, the race in New Jersey is not particularly close.

Virginia looks to be closer. The Democratic candidate, Lieutenant Governor Ralph Northam, seems to have a lead in the polls — the typical poll shows a lead of around 5% — but there is one recent poll showing the Republican candidate leading. (The difference in the polls is mostly driven by their estimate of the composition of the likely voter pool. Given recent elections in Virginia and the tendency of the party in the White House to underperform, the one poll favoring the Republicans almost certainly over-estimates the number of Republican voters.) My hunch is that the Democratic candidate will win, but this race is not a sure thing.

In addition to the two governor’s races — and the down ballot races — in New Jersey and Virginia, there will be a special election in Utah’s third district. As with most of the other special elections this year, the special election is in a relatively safe district (partisan vote index of R +25, sixteenth most Republican district in the country). As such, the chances of a Democratic win are slim, but it is likely that the race will be closer than those numbers would indicate.

Besides the Utah election on November 7, there are two later state-wide special elections — the run-off in Louisiana for State Treasurer (to fill the vacancy created when the previous Treasurer won the U.S. Senate race in 2016) which will occur on November 18 (a Saturday as is typical for state elections in Louisiana) and the U.S. Senate election in Alabama on December 12. In Louisiana, the Democrat (Derrick Edwards) finished first in the top two primary with 31% of the vote, but that was with three Republicans finishing close to 20% each, all getting more than 18% each. In short, as is typical in Louisiana, the Republicans definitely have an advantage, but in a low turn-out election anything is possible.

Finally, in Alabama, the polls seem to show a narrow lead for the Republican candidate. However, the Republican candidate is so extreme that the Democratic candidate — former U.S. Attorney Doug Jones — has a fighting chance. We will probably be revisiting this race in early December.

In short, the next two months feature two races in which the Democrats should win, and three races with uphill odds — ranging from slightly uphill to very steeply uphill. And that’s not counting three state legislative special elections (two in Republican districts and one in a Democratic district along with the regular legislative elections in New Jersey and Virginia.

Of course, the races for Governor in Virginia and New Jersey are the first of several elections over the next four years that will have an impact on redistricting in 2021. The Republicans winning the Governor’s office in both states in 2009 played a significant role in state congressional district maps that are favorable to the Republicans. (In Virginia — where Republicans controlled both houses of the legislature and the governorship, the Republicans have 7 representatives in the U.S. House to 4 representatives for the Democrats despite Clinton winning Virginia by a significant number. The lines in New Jersey — where Democrats have more power in the legislature — more closely resemble a proportional result with the Democrats having a 7 to 5 advantage, but that advantage comes from winning a very close seat that had been held by the Republicans in both 2012 and 2014. ) In short, the battle for fair lines in 2022 starts now, and these two races are crucial to getting and keeping a Democratic majority for the next President.

]]>The Future of Redistrictinghttp://www.democraticconventionwatch.com/diary/6513/
Mon, 02 Oct 2017 11:58:35 +0000http://www.democraticconventionwatch.com/?p=6513At 10 a.m. on Tuesday, October 3, the Supreme Court Justices will take the bench and the Chief Justice will call for arguments in Gill vs. Whitford — a case on direct appeal from a three-judge panel in which the majority of the panel found that the legislative districts in Wisconsin were the results of an unconstitutional partisan gerrymander. Then, on Friday, the justices will discuss the case in conference, and — depending on the vote — either Chief Justice Roberts and Justice Anthony Kennedy will assign this case to one of the justices to write the opinion. Then — probably in February or March — we will get a series of opinions (with possibly no opinion having the support of five justices) that will define the rules for the next cycle of redistricting starting in 2021.

This case has its roots in the framing of the Constitution. The original structure of the British parliament awarded a certain number of seats to each incorporated borough (town) and to each shire (county). When combined with the fact that only freeholders (property owners) had the right to vote, by the middle of the Eighteenth Century, there were boroughs that were very small with only a handful of voters (so-called “rotten boroughs”). The non-representative nature of the British Parliament was one of the reasons why colonists did not accept the argument that they were represented by the British Parliament. In drafting the U.S. Constitution, at least for the House of Representatives, the framers decided that representation in Congress would depend upon population based on a decennial census.

By requiring that representation in the House would be based on representation, the Constitution created a de facto requirement that states draw new congressional districts (at least when a state’s representation changed). Some, but not all, states also based representation in state legislatures on population — again requiring periodic redistricting. In simply requiring redistricting, the U.S. Constitution was ahead of its time. Now, most countries that use a first-past-the-post system also have periodic redistricting. The vast majority of them also use a non-partisan commission with specific criteria to draw fair and competitive district lines. The framers, however, did not have the extra two centuries of seeing what works and what doesn’t work in the redistricting process. And it is some of what happened next in the U.S. that has led the other countries to have neutral agencies handle redistricting.

In 1812, after the adoption of a new state constitution, Massachusetts had to draw new district lines. And with one party (the Democratic-Republicans) controlling the legislature and the Governor’s mansion, the new lines were drawn to maximize the number of legislative seats that would favor the Democratic-Republicans and to minimize the number of seats that would favor the Federalists. The weird shape of one of the districts was noted by a Federalist newspaper (back in the days when media was actually biased) and the term gerrymander (after then-governor and soon-to-be-Vice-President Elbridge Gerry) was born.

The essence of the gerrymander has not changed over time. Every gerrymander does two things: it packs the opposing party into a handful of safe districts and it cracks the opposing party out of a potential swing district into neighboring safe districts that favor the majority. For example, imagine a region with four hundred people that need to be split into four districts. This district has 180 people who vote for Party A, 180 people who vote for Party B, and 40 swing voters. “Natural” district lines would give you a Western district that favors Party A (say 70-20-10), an Eastern District that favors Party B (again say 70-20-10) and two central swing districts (say the Western one favors Party A by 48-42-10 and the Eastern one favors party B by 42-48-10). A pro-Party A gerrymander would redraw the lines so that District 1 (the westernmost district) favored them by only 60-25-15 and District 2 (the central western district) favored them by 58-37-5 — cracking Party B and swing voters out of district 2 and placing them into a district that was safe for Party B, turning 1 safe and 1 swing district into 2 safe districts. At the same time, District 4 (the Eastern District) is redrawn to make it 80-5-15 giving Party A the majority (57-38-5 ) in District 3, making District 4 even safer for Party B and turning District 3 from a swing seat into a safe seat for Party A by packing Party B voters into District 4.

While the essence of gerrymandering has not changed, what has changed is the ability to manipulate data. In the past, gerrymandering involved looking at precinct/voting district level results. If you split a precinct between two districts, you basically assumed that all voters in the precinct were interchangeable. Now, computers can make highly accurate guesses based on census block level data and data mining as to where the Republican and Democratic voters in a precinct live. More importantly, computers can quickly run multiple alternative maps to maximize a party’s performance. Once the majority party defines the parameters for the program (e.g., priority one — maximize the number of seats in which the opposing party gets more than 70% of the vote; priority two — maximize the number of seats in which your party gets between 57% and 62% of the vote; priority three — a certain number of seats that in which minorities have at least 40% of the vote; priority four — a certain score for compactness, etc.), it can then have the computer run ten or twenty maps and then opt for the one that has the most safe districts for the majority party. The end result is a legislative map in which the minority party needs to get 55% or more of the statewide vote to even have a shot at winning control of the legislature.

Several times in the past, the Supreme Court has taken a look at partisan gerrymandering. Each time, the majority has seen that such a claim is theoretically valid. However, there has never been a majority that could agree on a standard. The last time that the Supreme Court took a look at this issue, the split was 4-4-1. Chief Justice Rehnquist, Justice Scalia, Justice Thomas, and Justice O’Connor did not think that there was a valid claim. Justices Stevens, Souter, Breyer, and Ginsburg thought that there was a claim but could not agree on the proper standard for such a claim. Justice Kennedy thought that there might be a claim but that none of the proposed standards was workable (in the sense of drawing a clear line between a legitimate map and an invalid map — in other words how far was too far). Given Justice Kennedy’s position, for the last ten years, litigants have been looking for tools and standards that would establish a sufficiently clear line.

Wisconsin (and those who support Wisconsin on this appeal) basically attempt to mischaracterize the challengers as proposing a standard that requires proportional representation. That is completely false. The issue is not exact proportionality. The issue is whether the lines give voters a realistic opportunity to change which party governs. Fair lines should have the tipping point (the point at which control changes) be close to 50% of the vote. How close the rest of the districts are to the median district is distinct from whether the tipping point is close to 50% of the statewide vote.

For the tipping point to be at 50%, the two-party vote — by percent — in the median district (i.e. the district that is exactly in the middle if you ranked the district by the percentage of the two-party vote that one of the parties gets) should be almost exactly the same as the statewide two-party vote — by percent. Which leads naturally to the first part of any standard — do the district lines inherently favor one party, There are lots of tools for measuring whether district lines are “unfair” — comparing the vote in the median district to the state-wide numbers, the efficiency gap (does one party “waste” more votes than the other party), looking at the results in multiple elections (including elections for state-wide offices) to see if one party’s apparent advantage is real or merely a fluke caused by the candidates who ran.

Some suggest that the standard should require that the advantage be persistent. One of the reasons for redistricting is to reflect changes in population over a decade; so it is expected that the impact of the lines will change. More significantly, it is difficult to show that lines create a persistent disadvantage without allowing the unfair lines to be used in several elections. I think it should be enough for the challengers to the district lines to use the last two cycles (state-wide vote) before redistricting (and any cycles that occur under the new lines before any trial) to show that the lines do create a clear advantage (make it difficult for the other party to get a majority of seats with a majority of the statewide vote) for the governing party under current conditions.

The other issue is one of intent — is the reasons for the lines to create that clear advantage. Admittedly, the best theoretical argument for those opposing recognizing partisan gerrymanders is a claim that the apparent lopsided results are the result of geography. Both in Wisconsin and in other states, however, there is evidence to support a finding of intent, and the intent standard in a partisan gerrymander case is not that different from a case involving racial gerrymander. Back to the computer programs discussed above. In the example used, the top two priorities were about partisan advantage for the majority — packing Democratic voters into ultra-safe Democratic districts and cracking them out of lean-Republican and swing districts to create as many safe Republican districts as possible. It is possible to give the redistricting program strictly non-partisan criteria — compact districts, equal population, VRA compliant (setting a certain number of minority influence districts at 40% of the population), respecting precinct and other political boundaries, etc. — and have the computer generate a large number of maps. The partisan nature of those maps can be compared to the map chosen. In particular, each of those maps will generate a median district with a measurable partisan composition, and the set of maps will generate a mean, median, and mode for the partisan composition of the median district of each map along with a standard deviation from the mean and median. If the map chosen is more favorable to one party by several standard deviations than the typical map, then that is strong evidence of intent. Additionally, if there are other actions — such as the Wisconsin Republicans starting with a very slanted map and then looking to make adjustments to make it even more slanted — revealing a desire to create an unfair map, then you have a pretty good case that the map is the product of an improper intent.

The ultimate question is whether it is proper for legislators to be creating maps designed to give a partisan advantage. The answer to that should ultimately be no. The Constitution provides for a republican form of government — one in which the legislative branch is responsive to and fairly represents the will of the majority. If it is acceptable for legislatures to draw district lines to frustrate the will of the majority, we have deviated from a republican form of government. It may, of course, be too much to ask for legislatures to ignore their partisan desire (and their desire to run for higher office), but the Supreme Court can give us a legal rule that limits the ability of legislators to depart from partisan neutrality in drawing legislative and congressional maps. Maybe, if the test has enough bite, more states will adopt the non-partisan commission as the instrument for drawing legislative maps. As noted at the start, by early next year, we will know whether legislators in 2021 will have to worry about courts stopping them from using the redistricting process to prevent the voters from controlling who governs or if legislators will continue to be able to choose their voters in a way that strips all power away from the electorate.